Sebastian Sterling Gobbett by his Next Friend Olivia Patricia Gobbett v Commissioner of Police
[2022] WADC 117
•20 DECEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SEBASTIAN STERLING GOBBETT by his Next Friend OLIVIA PATRICIA GOBBETT -v- COMMISSIONER OF POLICE [2022] WADC 117
CORAM: STAVRIANOU DCJ
HEARD: 19 DECEMBER 2022
DELIVERED : 20 DECEMBER 2022
FILE NO/S: CIVO 201 of 2022
BETWEEN: SEBASTIAN STERLING GOBBETT by his Next Friend OLIVIA PATRICIA GOBBETT
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Application for directions made pursuant to s 122 of the Criminal Investigation Act 2006 (WA)
Legislation:
Criminal Investigation Act 2006 (WA), s 118, s 120, s 121, s 122
Result:
Applicant granted permission to possess audiovisual record of interview
Representation:
Counsel:
| Applicant | : | Ms A T Schmidt |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Separovic Injury Lawyers |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Ex parte West Australian Newspapers Ltd [2008] WASCA 209; (2008)38 WAR 177
STAVRIANOU DCJ:
Introduction
The applicant, Sebastian Sterling Gobbett, intends to commence an action for damages for personal injury suffered in an incident said to have occurred on or about 16 August 2021.
The applicant has applied pursuant to s 122 of the Criminal Investigation Act 2006 (WA) (the Act) for an order that the Commissioner of Police provide to the applicant's solicitors a copy of an audiovisual record of interview conducted on 21 August 2021 by Kevin Orr.
The application is supported by an affidavit sworn by the applicant's solicitor on 23 November 2022.
Background
On or about 16 August 2021, the applicant was involved in an incident in which he was severely injured. The brief circumstances are that the applicant was riding a bicycle which was in a crash with a motor vehicle.
Because of his injuries the applicant has no recollection of the circumstances of the incident and is unable to communicate.
Mr Orr was the investigating police officer in relation to the incident and on the 21 August 2021, he conducted an interview with a person whose identity remains undisclosed but is believed to have been involved in the incident.
The applicant's solicitor has given notice of the intended claim to the Insurance Commission of Western Australia which is the statutory insurer for the undisclosed person. The Insurance Commission of Western Australia has been unable to obtain a statement from the undisclosed person. To date, no decision as to liability has been made.
The applicant's solicitor has sworn that it is in the interests of justice for the recording of the interview conducted by Mr Orr to be disclosed. This will enable the applicant to prepare the case for negotiation or, alternatively, trial.
Statutory framework and legal principles
Part 11 of the Act regulates the recording and use of a record of interview made by an accused.
Section 118 provides that, subject to certain exceptions where a person is suspected of committing an indictable offence, any admissions made by the person are inadmissible unless recorded by audiovisual means.
Section 120 restricts the possession, playing, supply, copying and editing of records of interview to authorised persons in particular circumstances. Neither the applicant nor his solicitors are authorised persons who have the right to possess or play the audiovisual recording. Section 120(1)(h) allows a person acting at the direction of a court to be an authorised person who may have the right to possess and play an audiovisual recording.
Section 121 provides that a person may not broadcast all or part of an audiovisual recording of interview unless the broadcast is made under the direction of a court under s 122.
Section 122 reads:
The Supreme Court, District Court, Magistrates Court or Children's Court may give directions (with or without conditions) as to the supply, copying, editing, erasure, playing, or broadcast of an audiovisual recording of an interview.
Pausing there, it is to be noted that there are no express terms in s 122 or pt 11 of the Act which would constrain the power of the court to give directions with respect to the supply and broadcast of an audiovisual recording of interview.
In Ex parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177 the Court of Appeal considered an appeal by a media organisation from a judge's decision which refused an order for the release of parts of an audiovisual record of interview made by a suspect in a murder investigation. The judge applied earlier authority in deciding that, in order to succeed, an applicant had to show that the directions sought would positively advance the interests of justice in the particular case, or that exceptional circumstances justified the directions. The majority determined that s 122 was not so limited and allowed the appeal.
From the reasons of the Chief Justice, the following principles may be distilled in relation to an application pursuant to s 122:
1.The general purpose of pt 11 of the Act is to enhance the quality of confessional evidence given in criminal proceedings:[54].
2.A legislative purpose of encouraging audiovisual recording of police interviews of suspects is abundantly clear from the terms of pt 11 and in particular from s 118, which limits the admissibility of confessional evidence which has not been audiovisually recorded. That purpose is a matter properly taken into account by a court when exercising the discretion conferred by s 122 of the Act: [54].
3.The general purpose of the Act, including pt 11, is to enhance the administration of criminal justice and in particular that aspect of the administration of justice that relates to criminal investigation. It is essential for a court considering making directions under s 122 to consider the extent to which the directions sought will enhance or detract from the administration of justice: [55].
4.The constraints which are imposed in relation to audiovisual recordings by pt 11 are, at least in part, motivated by the concern that if it were to become commonplace for video recorded interviews to be supplied to the media against the wishes of the interviewee, this could discourage voluntary participation in video records of interview, to the detriment of the administration of justice: [62].
5.Having regard to the unconstrained terms in which the court is empowered to make directions pursuant to s 122, the court has a general discretion to make such directions to be exercised by taking into account all relevant facts, matters and circumstances: [64].
6.There is nothing in the Act which would exclude from consideration relevant aspects of the public interest, or legitimate private interests, or indeed considerations such as the public interest in personal privacy on the one hand, or in freedom of communication on the other: [64].
7.If the direction is sought with the consent of the interviewee and there is no prospect of any further investigation or court proceedings arising from the subject matter of the interview, then depending upon the purpose for which the direction is sought it may well be possible to conclude that the discretion is properly exercised in favour of making a direction: [68].
Consideration
The applicant has a legitimate private interest in being given access to the audiovisual record of interview. There are several reasons for this. First, what the undisclosed person said in the interview may shed light on the circumstances in which the applicant was injured. Secondly, it may provide information which enables the identification of further lines of enquiry concerning the incident. Thirdly, it may contain information as to the undisclosed person's involvement in the incident. All these identified matters assume significantly greater importance in circumstances where the applicant apparently has no recollection of the incident and is unable, because of the injuries he suffered, to instruct his solicitors properly and adequately. Access to the audiovisual record of interview will result in the applicant's solicitors being provided with further information about the incident. With that additional information the applicant will be able to be more fully advised as to his proposed claim.
The undisclosed person has not had the opportunity to be heard on the application. However, there is a good explanation for this, namely that he cannot be located.
This is not a situation where the making of orders is likely to have the effect of discouraging voluntary participation by suspects to offences in audiovisual records of interview. The orders which are to be made are of limited scope and will enable the applicant to have access to information, to obtain advice if necessary, and to present his position either in negotiations or at trial. It is within the applicant's private interest and in the interest of justice that this occurs.
It is the case that there is no information available as to the prospect of further criminal investigations or a further criminal prosecution arising from the incident the subject of the audiovisual record of interview. However, the audiovisual record of interview is proposed to be used only for the purpose of the proposed claim. The broadcasting of the audiovisual record of interview to the public at large can be properly restricted by the terms of the orders. In the event a criminal prosecution is commenced then the orders can be revisited.
In all the circumstances I do not consider that the making of directions under s 122 will detract from the administration of criminal justice or justice generally.
It is in the interests of justice that a direction be made enabling the applicant's solicitors to possess a copy of the audiovisual record of interview and have the ability to play it to the applicant and, if necessary, any experts that they may retain. However, the recording of the audiovisual record of interview cannot, without the leave of the court, be given any wider publication.
Conclusion
I am satisfied that I should exercise the discretion under s 122 of the Act and grant the applicant access to the audiovisual record of interview and orders enabling copying and limited playing.
I therefore make orders in the following terms:
1.The respondent make and provide to the applicant's solicitors, a copy of the audiovisual record of interview conducted on 21 August 2021 by Mr Orr.
2.The solicitors for the applicant be granted permission to possess one copy of the audiovisual record of interview.
3.Only one copy of the audiovisual record of interview may be possessed and used by the applicant's solicitors and no further copies are to be made.
4.The applicant's solicitors be permitted to play the audiovisual record of interview to the applicant and any experts they retain for the purposes of advising with respect to and preparing, negotiating and presenting the applicant's proposed claim arising out of the incident which occurred on or about 16 August 2021.
5.At the conclusion of the intended action the applicant's solicitors shall return their copy of the audiovisual record of interview to the respondent within seven days.
6.The copy of the audiovisual record of interview be used only in connection with an action that the applicant intends to bring in the District Court of Western Australia.
7.The applicant pay the respondent's reasonable costs of copying and providing a copy of the audiovisual record of interview to the applicant's solicitors.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FE
Associate
19 DECEMBER 2022
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